Boyes v. Evans

THOMPSON, J.

The defendant, Harry D. Evans, has appealed from a judgment which was rendered against him in a suit for damages for personal injuries received.by the deceased in an unprovoked assault upon him. The cause was tried by the court sitting without a jury. The court found that the appellant, without cause, violently beat and struck the deceased, knocking him to the floor, and that he kicked him upon his thigh, sides and back with such force as to severely bruise and injure him, causing grievous pain and suffering and resulting in the impairing of his health. Judgment was accordingly rendered against the appellant for special damages in the sum of $136, general damages in the sum of $500 and punitive damages in the further sum of $1,000. Upon motion for a new trial the punitive damages were reduced to the sum of $500; the total damages were fixed at the sum of $1136 and costs of suit, and the motion for a new trial was thereupon denied. From this judgment the defendant Harry D. Evans has appealed.

It is contended the findings and judgment are not supported by the evidence for the reason that the plaintiff’s testimony is inherently improbable; that the court erred in admitting and rejecting testimony during the course of the trial and that the record contains no evidence of malice in fact on the part of the appellant to support the award of exemplary damages.

After reading the entire record we are convinced the plaintiff’s evidence is not inherently improbable. In fact,

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certain circumstances strongly support the findings of the court to the effect that Lim Sing, the plaintiff’s intestate, received from the appellant a brutal beating and kicking which may have resulted in his subsequent death. The evidence is irreconcilably conflicting, but unless the plaintiff’s evidence appears on its face to be inherently improbable, this court has no power to disturb the judgment on that account. The trial judge is a man of high character and wide judicial experience. He listened to the evidence and observed the witnesses on the stand. It is exclusively his province to judge of the weight and sufficiency of the evidence, and the credibility of witnesses. We have no disposition to disturb his judgment in those matters.

While the testimony is hopelessly conflicting, there is evidence to support the following statement of facts: Lim Sing was a slight, little Chinese weighing only 114 pounds and being 62 years of age. He had lived in America for thirty-eight years. He seems to have been an industrious, harmless old man, whose occupation was that of a cook during most of his residence in this country. He lived at number 115 East Sonora Street in Stockton, in the vicinity of which for many years he had conducted the Yokohama Restaurant, in company with two partners. The restaurant was generously patronized by Chinese customers. He did the cooking for that restaurant, for which he was paid $75 a month. His countrymen testified they had never heard of his smoking or dealing in opium or any of its derivatives. It is evident he was a law-abiding person. While it does appear that a man by the name of Lim Sing in company with a dozen other Chinese was arrested in an opium den in Oakland about a year before the assault which is involved in this case occurred, the charge was dismissed against them. He denied that he was ever arrested at Oakland on an opium charge or at all, and substantial evidence was adduced to prove an alibi on his part to the effect that he was then in Stockton attending to his regular business. At least that is the only charge which was attempted to be proved against him in spite of his many years of residence in California and in the city of Stockton.